Ngomesia v Alberta (Director of SafeRoads), 2023 ABKB 57

Court of King’s Bench of Alberta Citation: Ngomesia v Alberta (Director of SafeRoads), 2023 ABKB 57 Date: 20230130 Docket: 2103 17704 Registry: Edmonton Between: Emmanuel Ngomesia Applicant - and - Director of SafeRoads Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice C.L. Arcand-Kootenay _______________________________________________________ I.

INTRODUCTION AND BACKGROUND [ 1 ] This is an application for judicial review of the Adjudicator’s decision to uphold a Notice of Administrative Penalty (“NAP”) issued to Emmanuel Ngomesia (the “Applicant”) pursuant to the Traffic Safety Act , RSA 2000, c.T-6 “(“ TSA ”) and SafeRoads Alberta Regulation , Alta Reg 224/2020 (“ SAR ”) (“ SafeRoads Alberta ”).

A. Legislative Background [ 2 ] SafeRoads Alberta came into force in December 2020. Other jurisdictions across Canada have enacted similar legislation, with British Columbia’s being the first and most heavily litigated. The legislation was designed to remove from the road those who are operating motor vehicles while their ability to drive is impaired by alcohol or drugs without engaging the Criminal Code : Lausen v. Alberta (Director of SafeRoads) , 2021 ABQB 896 [ Lausen ]. [ 3 ] Sections 88.1(1) and 88.1

(2) TSA require a peace officer, who has reasonable grounds to believe that a driver’s ability to operate the motor vehicle is impaired to any degree by alcohol or a drug or by a combination of the two, to issue a NAP and require the driver to surrender his or her operator’s licence. An officer will have those grounds if a driver’s breath sample into an Approved Screening Device (ASD) registers a FAIL result. The driver has a right to an immediate roadside appeal, which allows the driver to challenge the officer’s grounds by providing a second sample of breath into a different ASD or Approved Instrument.

The officer must advise the driver in writing about the right to a roadside appeal. This process is specified in s.88.11 TSA . [ 4 ] Once a person has been issued a NAP, that person can seek a review in front of an Adjudicator. A brief synopsis of this process was set out by Rooke, ACJ in Kelleher v. Alberta (Director of SafeRoads) , 2021 ABQB 517 at paras 1 and 2 : [1] On December 8, 2021, the SafeRoads Alberta Tribunal was created by the SafeRoads Alberta Regulation , Alta Reg 224/2020 , as authorized by the Provincial Administrative Penalties Act , SA 2020, c. P-30.8 [ PAPA ].

The SafeRoads Alberta Tribunal conducts reviews of Traffic Safety Act , RSA 2000, c. T-6 [ TSA ] “Validity of the Notices of Administrative Penalty” that impose sanctions such as licence suspensions, vehicle seizures, and fines for disqualifications for driving: TSA

Part 4. The purpose of the legislation is to provide a simplified, consistent, proportionate, and expedient mechanism to evaluate the validity of Notices of Administrative Penalty: PAPA s 2. SafeRoads Alberta Adjudicators issue formal reported decisions in response to TSA reviews (SafeRoads Alberta Decisions). [2] SafeRoads Alberta Decisions are subject to judicial review by the Court of Queen’s Bench of Alberta: PAPA s 24.

While the usual period in which to file and serve a judicial review is six months (Alberta Rules of Court, Alta Reg 124/2010 Rule 3.15(2)), judicial reviews of SafeRoads Alberta Decisions must be filed and served no later than 30 days after the date the SafeRoads Alberta Decision is received by the Applicant ( PAPA s 24(2)). B. Administrative Review [ 5 ] NAPs are reviewed by adjudicators pursuant to the Provincial Administrative Penalties Act , RSA 2020 c.P-30.8 (“ PAPA ”) and Provincial Administrative Penalties Regulation , Alta Reg 217/2020 .

The grounds upon which an adjudicator may cancel a NAP are set out in s 4 SAR . [ 6 ] The onus is on the recipient of the NAP to establish the grounds to cancel on a balance of probabilities: PAPA s 18(1). If the adjudicator is not satisfied that the grounds have been met, the adjudicator must confirm the NAP: PAPA s 21(1)(a).

Conversely, if the adjudicator is satisfied the grounds have been met, the adjudicator must cancel the NAP: PAPA s 21(1)(b). [ 7 ] The materials that an adjudicator may consider include a copy of the NAP, any records, representations, arguments, and evidence submitted by the recipient, the report of the officer who issued the NAP, any other relevant records and representations of the officer, and any relevant scientific, technical, or medical information and documents found in the Technical Materials Library provided for in PAPA s 4; PAPA s 18(2).

A report, notes, or other documents confirmed by an officer in accordance with the regulations are deemed to have been made under oath: PAPA s 14. The adjudicator may determine the weight to be given to any documents, records, representations, or evidence and is not bound by the rules respecting evidence applicable to a judicial proceeding: PAPA s 18(3) and (4) [ 8 ] Neither the Registrar of the Motor Vehicles on whose behalf the NAP is issued, nor the police officers are represented at the review in front of the adjudicator. II. HISTORY A.

Circumstances of the Traffic Stop [ 9 ] On October 2, 2021, at or near Edmonton, Alberta, the Applicant was observed by Cst. Kerckhof on 82 Avenue allegedly failing to maintain his place in lane. Cst. Kerckhof executed a traffic stop at approximately 3:10 a.m. The Applicant advised Cst. Kerckhof that he was changing lanes because he was scared he was being followed. Cst. Kerckhof noted the Applicant had dilated pupils and slow, slurred speech. Cst.

Kerckhof made a demand for breath and at 3:15 a.m. a fellow officer arrived with an ASD. [ 10 ] The Applicant provided a successful sample on the fourth attempt, and it registered as a “FAIL”. The Applicant was then arrested and put into the back of the police cruiser. During the walk to the police cruiser Cst. Kerckhof “advised Ngomesia that he was able to request a second test, but he denied”. [ 11 ] Cst. Kerckhof transported the Applicant to his residence and released him at 0442 hours. Cst.

Kerckhof provided the NAP form to the Applicant when he was dropped off at his residence. [ 12 ] The NAP the Applicant was provided, gave the Applicant Notice that he was being issued an immediate roadside administrative penalty and information about the roadside right of appeal. [ 13 ] The NAP indicates that an immediate roadside sanction is being imposed and specifies the following effective immediately:

● Your privilege to operate a motor vehicle in the province of Alberta has been suspended/disqualified, ● Your vehicle may be seized as a result of your suspension/disqualification, ● You are subject to a fine plus victim fine surcharge, and ● You may be subject to further administrative and criminal sanctions and penalties. [ 14 ] In capital letters near the bottom of the NAP/IRS it states: YOU HAVE THE RIGHT TO REQUEST A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION YOU MUST IMMEDIATELY INDICATE TO THE POLICE OFFICER YOUR CHOICE TO HAVE A SECOND TEST. [ 15 ] Below the writing indicated above, there is a small

section that states: Right to Second Test Driver provided with information on the right to a second test _Y _ N Driver requested second test _ Y _ N [ 16 ] In the matter before me, the first box ticked indicates “Yes” and the second box is ticked “No”. [ 17 ] Cst. Kerckhof issued the Applicant a Notice of Administrative Penalty and Immediate Roadside Sanction (“NAP”).

The NAP specified that the administrative penalty is being imposed pursuant to s 88.1 TSA because of the officer having reasonable grounds to believe that the Applicant operated a motor vehicle while his ability to do so was impaired by any degree by alcohol or a drug or by a combination of alcohol and a drug, and that this was the Applicant’s first occurrence, which results in a fine of $1,000. B. The NAP Review [ 18 ] On October 8, 2021, the Applicant applied for a review of the NAP. The applicant sought cancellation of the NAP on the following grounds: (

i) The Recipient was not properly provided a second opportunity to provide a second breath sample into a different Approved Screening Device or approved instrument. (ii) The Recipient did not receive the NAP/IRS at the relevant time. (iii) The demand for breath was not lawful and the ASD should be afforded no weight. [ 19 ] The Applicant argued that: ● He was not swerving on the road but was nervous about being tailed by an unknown vehicle and was attempting to allow his vehicle to pass. ● His speaking was not slow and slurred, as he has a heavy accent and always sounds like this. ● He was nervous while Cst.

Kerckhof was standing by his vehicle, and Cst. Kerckhof was impatient as to why he didn’t immediately find his keys nor his license in his wallet. His wallet also contains credit cards, in addition to his license. ● He had two shots of alcohol fifteen minutes before he was pulled over by Cst.

Kerckhof and had no other alcohol that night. ● He recalled being verbally told words to the effect of “you can have another test, you know?” but he did not understand that this meant a second test into a second and different device. ● It has to be an informed decision to exercise or not to exercise the right to provide a second sample on a different approved screening device, or on an approved instrument. ● The oral offer to provide a second sample by Cst.

Kerckhof does not cure the problem, that the officer did not advise the recipient in writing, by orally communicating words to the effect that the recipient could provide another sample. This fails to be in writing. ● The form itself is insufficient to meet the requirements of s 88.11, merely issuing a NAP/IRS with the caution as it is printed is insufficient to meet the obligations imposed under s 88.1 ● If the written notice in s 4(e)(

v) and s 4(f)(vii) is the notice at the bottom of the NAP/IRS from, then the form was not served on the recipient at the relevant time. ● The written notice at the bottom of the NAP/IRS is itself insufficient notice. [ 20 ] Cst. Devin Kerckhof narrative: ● On October 2, 2021, he was conducting proactive patrol in the area of 107 Street and 82 Avenue when he observed an Infiniti

with an Alberta license plate “driving on centre line erratic swerving back into lane stopped in middle of intersection at 110 & 82 drove on centre line for half block”. ● I then activated my emergency lights to conduct a traffic stop on 110 street. ● I observed Ngomesia to have dilated pupils. ● Ngomesia told me he was making lane changes because he was scared, he was being followed. ● I did not have an ASD with me and requested one. At 0315 hrs I read Ngomesia the ASD demand and he replied “yes”…On the 4th attempt Ngomesia complied and there was an appropriate sample provided. The ASD then read FAIL.

I then arrested Ngomesia for impaired and put him into the back of my police vehicle. ● I advised Ngomesia that he was able to request a second test, but he denied. This statement is not in Cst. Kerckhof’s handwritten notes but only in his typed narrative report. ● I waited for Ngomesia vehicle to be towed and then transported Ngomesia to his residence, where he was released at 0442 hrs. ● Neither Cst. Kerckhof’s written notes nor his typed narrative indicate when or whether the NAP was provided to the Applicant. This information has only been provided by the Applicant. C.

The Adjudicator’s Decision [ 21 ] The Adjudicator issued a decision on November 1, 2021. The Adjudicator concluded that the following issues were before them relating to the SAR :

Section 4(e) (ii) and

section 4(f)(ii): was a NAP not served on the Recipient.

Section 4(e)(iv): Was the recipient’s ability to operate a motor vehicle not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug?

Section 4(e)(

v) and

section 4(f)(viii): Did the Officer not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the TSA and was the recipient unaware of that right?

Section 4(f)(iv): Did the recipient not have within 2 hours of ceasing to operate a motor vehicle a blood alcohol concentration (“BAC”) equal to or exceeding 80 milligrams of alcohol in 100 milliliters of blood (“80 MG%”)? 5. Was the recipient’s right to fairness breached? [ 22 ] The Adjudicator confirmed the NAP. Traffic Safety Act [ 23 ]

Section 88.1

(1) Subject to subsection (3), if a peace officer has reasonable grounds to believe any of the following, the peace officer shall, on behalf of the Registrar, take the actions set out in subsection (2): (

a) That a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (

b) That a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 milliliters of blood; …

(2) The peace officer shall issue a notice of administrative penalty to the driver, and, in the case of a driver who holds an operator’s licence, require the driver to surrender to the peace officer the operator’s licence. …

(5) The peace officer shall advise the driver of the driver’s right to voluntarily undergo the applicable test, analysis or evaluation referred to in

section 88.11(2). [ 24 ]

Section 88.11

(2) Notwithstanding that a notice of administrative penalty has been issued to a driver under

section 88.01, 88.02, 88.03 or 88.1, where a driver requests an appeal of that notice of administrative penalty and voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, the driver shall immediately (

a) where the basis for issuing the notice of administrative penalty was an initial test performed on an approved screening device, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on a different approved screen device, or on an approved instrument, at the discretion of the peace officer. …. (

f) where the basis, in whole or part, for issuing the notice of administrative penalty was reasonable grounds to believe there was alcohol

in the driver’s body, and an initial test, evaluation or analysis referred to in clause (a), (b), (

d) or (

e) was not performed on the driver, provide a sample of breath that in the opinion of the peace officer is suitable for analysis on either an approved screening device or approved instrument, at the discretion of the officer. SafeRoads Regulation [ 25 ]

Section 4 The grounds for an adjudicator to cancel a notice of administrative penalty … (

e) issued for a contravention of

section 88.1(1)(

a) of the Act are: … (ii) that a notice of administrative penalty was not served on the recipient, … (iv) that the recipient’s ability to operate a motor vehicle was not impaired to any degree by alcohol or a drug or a combination of alcohol and a drug. (

v) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right, or … (

f) issued for contravention of

section 88.1(1)(

b) of the Act are … (ii) that a notice of administrative penalty was not served on the recipient. … (viii) that the officer did not advise the recipient in writing of the right to a roadside appeal under

section 88.11 of the Act and the recipient was unaware of that right, or … [ 26 ] The Adjudicator concluded that the recipient did not deny receiving the NAP, although he received it at 0442 hours, the recipient was still in custody of the officer at the time, therefore the Adjudicator was satisfied the recipient received a copy of the NAP per statutory and regulatory requirements,

section 4(e)(ii) and

section 4(f)(ii). [ 27 ] The Adjudicator also concluded that the evidence showed a “Fail” result on a properly calibrated and maintained ASD. A “Fail” result, according to the SafeRoads Technical Materials Library (“TML”), means the recipient had a BAC of 100 mg in 100 ml (“100 mg%) at the time of the test. The TML also shows that anyone with a BAC of 100mg% is impaired in their ability to operate a motor vehicle. The Adjudicator found that the recipient had not convinced him/her that his ability to operate a motor vehicle was not impaired to some degree,

section 4(e)(iv). [ 28 ] Regarding

section 4(e)(

v) and 4(f)(viii), the Adjudicator found the recipient was provided a valid NAP when he was delivered home, which contained information concerning his right to an appeal, and the recipient understood that he had that right after Cst. Kerckhof verbally informed him of that right. The Adjudicator found the police evidence supported the recipient’s assertion that information about a second test was provided verbally as Cst. Kerckhof’s report states: “I advised the recipient that he was able to request a second test, but he denied.” [ 29 ] Regarding

section 4(f)(iv), the Adjudicator found the ASD was properly maintained and calibrated, and the recipient’s breath sample provided a “Fail”, which indicates his BAC was over 80 mg% at the time of operation. [ 30 ] Lastly, the Adjudicator did not find that fairness was breached because of police error or misconduct. The Adjudicator did not find that the officer acted in an unfair manner or did not act in good faith. The Adjudicator stated: “As the investigation proceeded, the police noted indicia of impairment and then decided to make a breath demand.

There is no evidence that the circumstances were egregiously unfair so that they would outweigh the public interest of removing an impaired driver from the road.” III. STANDARD OF REVIEW [ 31 ] The standard of review for the issues in this case is reasonableness. The reasonableness standard is prescribed by s 24(3) of the PAPA . Accordingly, I must consider the review under the framework in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . [ 32 ] The standard of reasonableness applies to both an adjudicator’s findings of fact and

interpretation of the law. [ 33 ] In applying the reasonableness standard, the reviewing court does not ask what decision it would have made in the place of

the decision maker, attempt to ascertain the “range of possible conclusions that would have been open to the decision maker, conduct a de novo analysis, or seek to determine the “correct” solution to a problem. The reviewing court must consider whether the decision is internally coherent, transparent, intelligible, and justified: Vavilov at paras 15, 83 and 85 . [ 34 ] A decision is unreasonable if there is a failure of rationality internal to the reasoning process, or if the decision is untenable in light of the relevant factual and legal constraints that bear on it: Vavilov at para 101 .

The decision must be justified in relation to the relevant law and facts and must meaningfully account for the central issues and concerns raised by the parties: Vavilov at paras 105 and 127 . The decision must be justifiable and justified: Vavilov at para 86 . In Mierke v. Alberta (Director of SafeRoads) , 2021 ABQB 1003 , at para 45 : BC case law acknowledges, consistent with Vavilov , that reasonableness review is not solely concerned with the question whether the adjudicator’s conclusion is within a range of acceptable outcomes of the evidence.

The outcome must be justified in a transparent and intelligible manner ( Mackenzie v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 354 at para 56 and authorities cited therein). IV. ISSUES [ 35 ] The only issue to be determined in this review is whether the proceedings before the Adjudicator were conducted fairly, and whether the Adjudicator’s decision to uphold the Applicant’s NAP was reasonable. The focus of the reasonableness inquiry is whether the Adjudicator’s reasons were justified based on the evidentiary record and the legislation by which the Adjudicator is bound. V.

POSITION OF THE PARTIES [ 36 ] The Applicant’s claim is based on the following: ● The oral offer to provide a second sample by Cst. Kerckhof does not cure the problem, that the officer did not advise the recipient in writing, by orally communicating words to the effect that the recipient could provide another sample. This fails to be in writing. ● If the written notice in s 4(e)(

v) and s 4(f)(vii) is the notice at the bottom of the NAP form, then the form was not served on the recipient at the relevant time. The Applicant was provided with the NAP at his residence at 0442 hrs, one- and one-half hours after the roadside stop. ● It has to be an informed decision to exercise or not to exercise the right to provide a second sample on a different approved screening device, or on an approved instrument. ● The form itself is insufficient to meet the requirements of

section 88.11, merely issuing a NAP/IRS with the caution as it is printed is insufficient to meet the obligations imposed under s 88.1 [ 37 ] The Director submits that the Adjudicator’s decision was reasonable. ● The recipient did not refute that he declined the opportunity to have a second test, and this clearly shows he was aware of that right. ● The Adjudicator found that the recipient was provided a valid NAP, which contained information concerning his right to an appeal, and the recipient understood that he had that right after Cst. Kerckhof verbally informed him of it. VI. ANALYSIS [ 38 ] The onus is on the Applicant to prove grounds to cancel the NAP. Was the Applicant served a NAP,

section 4(e)(ii) and 4(f) (ii) and was the Applicant advised in writing of his right to a roadside appeal, pursuant to

section 4(e)(

v) and 4(f)(viii) of the SafeRoads Alberta Regulation . [ 39 ] I find that the Applicant was not informed in writing at the roadside. Indeed, Cst. Kerckhof’s report confirms the recipient’s assertion, that he was only notified verbally at the roadside. [ 40 ] I find that this is not what the legislation intends pursuant to

section 4(e)(

v) and 4(f)(viii): that the recipient is to be advised in writing. [ 41 ] The Applicant was informed in writing at his residence, one- and one-half hours later. I find that this is not reasonable in the matter before me. Counsel for the Applicant used the words patently unreasonable and illusory. I agree with counsel. [ 42 ] At paragraph 48, Cornforth v. Alberta (Director of SafeRoads) , 2022 ABQB 341 , Justice Nixon stated: I agree with the Director that the requirement of “informed consent” and “informed waiver” is in direct contradiction to s 4(e)(

v) SAR . The statute requires the Applicant to prove both lack of written notice and lack of awareness of the right of appeal. As the Director noted, a person lacking awareness would still fail to prove on this ground to cancel if he or she received written notice but refused to read it. [ 43 ] In the matter before me, the Applicant did not receive written notice at the roadside. The Applicant did not receive written notice until 0442 hrs, approximately one- and one-half hours after the roadside stop. Thus, there was a lack of awareness in the matter

before me. It is not reasonable to infer that the Applicant had proper written notice based on these facts. [ 44 ] I also find that this information, specifically that the NAP was provided to the Applicant at his residence, is only provided by the Applicant to the Adjudicator. There is nothing in Cst. Kerckhof’s typed narrative or in his handwritten notes to indicate that the NAP was, in fact, provided to the Applicant at all. [ 45 ] I find this is an important and relevant piece of information that was missing from Cst.

Kerckhof’s evidence. [ 46 ] Lastly, the Adjudicator did not find that fairness was breached because of police error or misconduct. The Adjudicator did not find that the officer acted in an unfair manner or did not act in good faith. [ 47 ] In Curtis v. Alberta (Director of SafeRoads) , 2022 ABKB 632 , Justice Bokenfohr states at paragraph 44: “The issue in this case is therefore whether the Applicant was provided with a meaningful opportunity for a review.” [ 48 ] That is also the issue in the matter before me.

Was the Applicant provided with a meaningful opportunity for review? [ 49 ] At paragraph 46, in the Curtis case, Justice Bokenfohr further states: [46] The Adjudicator’s reasons focused on whether the officer did anything to obscure or undermine the Applicant’s right to a roadside appeal (para 14) and whether the officer treated the Applicant egregiously unfairly (para 15). These are not the only questions that need to be considered.

It was also necessary for the Adjudicator to consider whether the contents of the TAS , the NAP, or the overall process somehow obscured the Applicant’s right to a roadside appeal and if so, whether this affected the fairness of the proceedings or is an egregious abuse of process or a breach of natural justice. [ 50 ] And at paragraph 47… “The Applicant’s reasons for declining to participate in a roadside appeal may be relevant to that inquiry.

For example, if the Applicant declined to participate in a roadside appeal because of confusing or misleading information provided to the Applicant by the State, the Adjudicator should consider whether the process was procedurally fair and was in accordance with the principles of natural justice.” [ 51 ] I note Cst. Kerckhof made the ASD demand at 0315 hrs.

Section 320.27(1) (

b) of the Criminal Code states: 320.27(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (

a) and (

b) in the case of alcohol… … (

a) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for the purpose. [ 52 ] Thus, this verbal demand is made by Cst. Kerckhof for the first test however, the only communication the officer makes regarding the second test is by verbally telling the Applicant “you can have another test, you know” but nothing more. I find that once that fulsome ASD demand is made to the Applicant, the Applicant says “yes” and complies.

I find the ASD demand contains a more fulsome explanation for the sample of breath. [ 53 ] As in Curtis , and in the matter before me, the Adjudicator’s reasons do not demonstrate that they considered the evidence of the Applicant regarding the second test, nor do they demonstrate that the Adjudicator fully engaged in the analysis and consideration of Charter values required by the question before them. [ 54 ] In the matter before me, the simple verbal request made by Cst.

Kerckhof to the Applicant at the roadside, but not having provided the NAP with the written information to the Applicant until one- and one-half hours later, is fatal. [ 55 ] Cst. Kerckhof’s actions do not meet the legislative requirements contained in, s 4(e)(ii) and 4(f)(ii): was the Applicant served a NAP; and in s 4(e)(

v) and s 4(f)(viii): the officer did not advise the recipient in writing of the right to a roadside appeal. [ 56 ] The Applicant was not provided with a meaningful opportunity to participate in a roadside appeal. I find that as the NAP was not provided at the roadside and was only provided one- and one-half hours later, the Applicant was not provided with a reasonable opportunity to read the NAP and to decide as to the second test. [ 57 ] On this basis, the Adjudicators decision on these issues is quashed. VII.

CONCLUSION [ 58 ] The Adjudicator’s decision confirming the NAP is set aside, and I impose a judicial stay. Heard on the 10 th day of January, 2023. Dated at the City of Edmonton, Alberta this 30 th day of January, 2023.

C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Y. Rory Ziv for the Applicant Jasmeet Sadhra for the Respondent